The Impact of the Enlightenment on American Constitutional Law

The Impact of the Enlightenment onAmerican Constitutional Law

Harold J. Berman*

I. A HISTORIOGRAPHICAL INTRODUCTION

In this essay I shall discuss, first, the contrast between certain religiousand philosophical ideas reflected in the system of constitutional lawwhich emerged from the French Revolution of the eighteenth centuryand certain religious and philosophical ideas reflected in the system ofconstitutional law which emerged from the English Revolution of theseventeenth century; and second, the tensions between those two con-trasting sets of ideas as reflected in the system of constitutional lawwhich emerged from the eighteenth-century American Revolution.

The contrast between these two sets of ideas, and also the contrastbetween the English system of constitutional law which developed after1640 and the French system of constitutional law which developed after1789, have been obscured by the use of the term "Enlightenment" toembrace both sets of ideas as reflected in both types of constitutional law.Prior to the mid-twentieth century, this English term was used onlyoccasionally.' In recent decades, however, it has been used indiscrimi-

* Robert W. Woodruff Professor of Law, Emory University; James Barr Ames Professor ofLaw, Emeritus, Harvard University. A somewhat shorter version of this essay was delivered as theGeorge A. Dougherty Foundation Lecture at The Catholic University of America on November 1,1991, at which time the Doctor of Laws degree, honoris causa, was conferred on the author. Thevaluable collaboration of Charles J. Reid, Research Associate in Law and History, Emory LawSchool, is gratefully acknowledged.

1. See John Lough, Who were the Philosophes?, in STUDIES IN EIGHTEENTH-CENTURY FRENCHLITERATURE 139 (J.H. Fox et al. eds., 1975). Lough points out that prior to World War II scholarsgenerally confined the use of the term "Enlightenment" to the eighteenth-century Germanmovement known as die Aufkldarung and that the term "Enlightenment" "has only recently becomefashionable" as a means of describing eighteenth-century philosophical thought. The FrenchEnlightenment, as typified by the philosophes, was known as le mouvement philosophique, and thephilosophes themselves were known as lumiires, "lights." "Enlightened" English authors of theeighteenth century sometimes spoke of an "Age of Reason." See ROLAND MORTIER, CLARTfS ETOMBRES DU SIt CLE DES LUMIPRE 24 (1969). As Lough notes: "Fifty years ago neither French norEnglish possessed an equivalent term to Aujkldrung." John Lough, Reflections on "Enlightenment"and "Lumidres," in L'ETA DEi LUMI: STUDI STORICI SUL SETTECENTO EUROPEO IN ONORE DIFRANCO VENTURI 36 (R. Ajello et al. eds., 1985). Indeed, in FRANqOIS FURET, MARX AND THEFRENCH REVOLUTION (Deborah K. Furet trans., 1988), the translator has rendered throughout theFrench words lumiire and lumiires by the German word Aujkldrung. Frangois Furet uses theexpression Aujkldarung in the original French as well. FRANqois FURET, MARX ET LA

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nately to refer to philosophies and times as far apart from each other asthose of the early seventeenth-century France of Descartes and the mid-eighteenth-century France of Diderot, as well as the England of JohnMilton or Matthew Hale and the England of Thomas Paine or JeremyBentham over a century later.2 Indeed, some American historians haveeven spoken of an "American Enlightenment," which is surely adistortion.a

RVOLUTON FRANgAISE (1986). A careful analysis of the history of the term lumire in theFrench literature of the seventeenth and eighteenth centuries by Mortier, supra at 13-59, supportsthe description given in the text here and infra text accompanying notes 4, 5, and 7.

Mortier indicates in passing that the past participle iclairi ("enlightened") was also occasionallyused by the French philosophes as well in the expression siicle 4clairi ("enlightened age") to refer toa progressive enlightening of European civilization. See also Jacques Roger, La Lumire et leslumiires, in 20 CONGRtIS DE L'AssOCIATION INTERNATIONALE DES ETUDEs FRAN(;AISES 167(1967). The standard noun form used by the French authors, however, remained lumire orlumieres.

2. See, e.g., ERNST CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT 22 (1951): "[I]t isevident that, if we compare the thought of the eighteenth century with that of the seventeenth, thereis no real chasm anywhere separating the two periods. The new ideal of knowledge develops steadilyand consistently from the presuppositions which the logic and theory of knowledge of theseventeenth century--especially in the works of Descartes and Leibniz-had established."Similarly, Norman Hampson, although skeptical of efforts to "push back" the dating of theEnlightenment, nevertheless attributes many "Enlightenment" characteristics to such seventeenth-century figures as Francis Bacon, Isaac Newton, and John Locke. NORMAN HAMPSON, ACULTURAL HISTORY OF THE ENLIGHTENMENT 35-40 (1968).

This gradual expansion of the notion of the "Enlightenment" is at least in part the product ofefforts to engage in broad historical synthesis. See PETER GAY, THE ENLIGHTENMENT: ANINTERPRETATION-THE RISE OF MODERN PAGANISM (1966). Gay has asserted:

Synthesis demands regard for complexity: the men of the Enlightenment were divided bydoctrine, temperament, environment, and generations. And in fact the spectrum of their ideas,their sometimes acrimonious disputes, have tempted many historians to abandon the search fora single Enlightenment. What, after all, does Hume, who was a conservative, have in commonwith Condorcet, who was a democrat? Holbach, who ridiculed all religion, with Lessing, whopractically tried to invent one? Diderot, who envied and despised antiquaries, with Gibbon,who admired and emulated them? Rousseau, who worshipped Plato, with Jefferson, who couldnot bring himself to finish the Republic? But I decided that to yield to the force of thesequestions would be to fall into a despairing nominalism, to reduce history to biography, andthus to sacrifice unity to variety.

Id. at x.As if responding directly to Peter Gay's call for synthesis, Lough states:To write about the literature and thought of such an age by putting the words Enlightenmentand Lumieres on the title-page and spraying them around in the text may appeal to publisherswho are always on the look-out for fresh devices which will help to sell their wares, but it isscarcely in accordance with the requirements of scholarship. There is in fact much to be saidfor going back to the old title French Thought in the Eighteenth Century and La Pensie Fran-Caise au XVIIeme Sicle and for producing a text which takes fully into account the almostinfinite variety of the ideas produced in the economic, social and political conditions in the lasthundred years or so [of] the ancien rdgime.

Lough, Reflections, supra note 1, at 56. Cf William Doyle's admonition: "[N]othing would havesurprised contemporaries more than the tendency of some recent historians to identify [the Enlight-enment] with the whole of eighteenth-century thought. Those who thought themselves 'enlightened'believed they were a small band of crusaders against widespread ways of thinking, habits, and insti-tutions that were not." WILLIAM DOYLE, ORIGINS OF THE FRENCH REVOLUTION 83 (2d ed. 1988).

3. See, e.g., HENRY F. MAY, THE ENLIGHTENMENT IN AMERICA (1976). May identifies fourtypes of "Enlightenment" at work in America in the eighteenth and early nineteenth centuries.These are (1) the Moderate Enlightenment, which "preached balance, order and religiouscompromise"; (2) the Skeptical Enlightenment, which took a jaundiced if not cynical view of humanperfectibility; (3) the Revolutionary Enlightenment, which engaged in millenarian thinking and held"the belief in the possibility of constructing a new heaven and earth out of the destruction of the

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The concept of a historical period or a mode of thought called the"Enlightenment" also suffers from a weakness characteristic of intellec-tual history generally, namely, the Hegelian tendency to assume thatideas have a history of their own, that new ideas grow out of old ideas,more or less independently of political, economic, religious, legal, andother social events. In reality, even the words themselves in which ideasare expressed may have different meanings in different times. For exam-ple, the theories expounded in the 1680s by John Locke, intended toexplain and justify the aristocratic English Revolution, acquired a quitedifferent significance in the eighteenth century when used by the Frenchphilosophes to explain and justify the revolutionary movement towarddemocracy.

This is not to say that there was no continuity in the development ofideas in Europe during the seventeenth and eighteenth centuries. Thatwould be an absurd statement. It is also not to say that the great politicaland legal revolutions of the sixteenth, seventeenth, and eighteenth centu-ries, which broke out successively in Germany in 1517, in England in1640, in America in 1776, and in France in 1789, were not themselvesstrongly influenced by fundamental transformations in European belief-systems. Surely, the revolutionary upheaval of our own twentieth cen-tury makes it difficult to accept the Marxian doctrine that belief-systemsare only an ideological superstructure based on a material substructure.On the contrary, it seems incontrovertible that so-called material and so-called ideological factors interact with each other; neither can be said tobe the mere "cause" or "effect" of the other. More specifically, Westernreligious and philosophical thought, which from the early sixteenth tothe late eighteenth centuries moved successively from Roman Catholi-cism to German Lutheranism, then to English neo-Calvinism, and thento French Deism, interacted with the movement of political and legalinstitutions at the same times and in the same countries from monarchyto aristocracy to democracy.

I believe that by examining in a historical context the interactionbetween religious and philosophical thought, on the one hand, and polit-ical and legal institutions, on the other, we may gain interesting andimportant insights into the nature of both.

II. THE FRENCH AND ENGLISH REVOLUTIONS: SYSTEMS OF BELIEFS

AND SYSTEMS OF LAWS

In considering both the continuity and the discontinuity of thought inFrance in the seventeenth and eighteenth centuries, one may indeed say

old"; and (4) the Didactic Enlightenment, which emphasized an "intelligible universe, clear andcertain moral judgments, and progress." Id. at xvi. These categories seem to be a reductio adabsurdum of the concept of the Enlightenment.

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that Descartes paved the way for the philosophes by his exaltation of rea-son. "It is reason alone," he wrote, "which constitutes us men." "Rea-son is by nature equal in all men .... And it must be noted, I say reasonand not our imagination or sense."4 By reason, Descartes meant theovercoming of doubt by rational demonstration and clear ideas. He didnot quarrel with the theological tradition of his time, which distinguishedsuch reason, called lumen naturale, lumire naturelle, "natural light,"from faith, or lumire spirituelle, lumire de lafoi, "spiritual light," "thelight of faith." "We must believe all that God has revealed," he wrote,"although it may surpass the reach of our mind."' Nor did Descartesattempt to apply his philosophical "method" to the political or religiouscontroversies of his time. He remained both a loyal monarchist and afaithful Christian, accepting divine revelation as a gift of faith, thoughalso attempting to prove it (as St. Anselm had done over five hundredyears earlier) by natural reason.6

A century later, however, in the minds of leading French thinkers, theCartesian concept of lumijre naturelle entirely supplanted lumire spiri-tuelle and for the first time acquired both religious and political impor-tance. The philosophes-Diderot, Voltaire, D'Alembert, Rousseau,Condorcet, and numerous others--denounced what they regarded as thesuperstitions and dogmas of traditional Christianity, replacing them withthe rational doctrine of a Supreme Being, Nature's God, who had in thebeginning created an autonomous world, which subsequently operated byits own perpetual motion.7 At the same time, they invoked the conceptof "natural light," or simply "light" or "lights," to denounce the privi-leges and prejudices of the aristocracy, both secular and ecclesiastical.The Cartesian doctrine of the natural equality of reason in all menbecame the foundation of a new philosophy of universal equality ofrights, individualism, and a government based on public opinion. Thestate was to be founded on the principle of the essential goodness of

4. RENtf DESCARTES, Discours de la Methode, in I OEUVRES PHILOSOPHIQUES DE DESCARTES568-69 (1988).

5. RENt DESCARTES, Les Principes de la Philosophie, in 3 OEUVRES PHILOSOPHIQUES DEDESCARTES 107 (1989). For an adequate translation, see THE MEDITATIONS AND SELECTIONSFROM THE PRINCIPLES OF RENf DESCARTES (1596-1650) 143 (John Veitch trans., 1931). Cf.MORTIER, supra note 1, at 16. The distinction between "natural light" and "spiritual light" may befound also in the works of Melanchthon, who used it as a basis for his theory of natural law. SeeHarold J. Berman & John Witte, Jr., The Transformation of Western Legal Philosophy in LutheranGermany, 62 S. CAL. L. REV. 1573, 1616 (1989).

6. Descartes' argument parallels Anselm's famous ontologicil proof of God. Anselm, however,started from the premise of faith, while Descartes started from the premise of doubt. In this context,Anselm's famous aphorism "credo ut intelligam" should be translated not as a purpose-clause, "Ibelieve in order that I may understand," as it has invariably been translated in English, but as aresult-clause, "I believe and so I may understand." For a comparison and close analysis of Anselmand Descartes, see ETIENNE GILSON, ETUDES SUR LE R6LE DE LA PENSIEE DU SYSTtMECARTtESIEN 216-23 (1951).

7. In attacking Spinoza's pantheism, Voltaire asked: "'How is it that [Spinoza] did not glance atthese mechanisms, these agents, each of which has its purpose, and investigate whether they do notprove the existence of a supreme artisan?' " Quoted in HAMPSON, supra note 2, at 83.

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human nature. The traditional hierarchy of estates, or orders, was to bereplaced by a rational regime of representative democracy.' The phrase"Rights of Man" was used to attack aristocratic privileges.9 These ideasfound expression in 1789 in the first decree of the popularly electedNational Assembly, declaring that "the feudal regime is abolished," andshortly thereafter in the adoption of the Declaration of the Rights ofMan and Citizen. Ultimately, they found expression in successiveFrench constitutions with their doctrines of civil rights and liberties, leg-islative supremacy, and strict separation of powers, and in the so-calledNapoleonic civil and criminal codes of the early 1800s.

I have identified some of the principal religious and philosophical ten-ets of the French philosophes of the middle and late eighteenth centuryand some of the principal manifestations of those tenets in political andlegal institutions that emerged with the French Revolution.'0 I turn nowto an equally cursory exposition of tenets and institutions connected withthe English Revolution of the seventeenth century.

Some historians have traced continuities between these two revolu-tions: both were fought partly against the Roman Catholic Church; bothwere fought partly against absolute monarchy; both invoked reasonagainst religious and political authoritarianism; both were republican inone or more senses of that much abused word. Yet even in these respectsthey were very different from each other and in other respects flatlyopposed to each other. The English Revolution-and here I refer notonly to its Puritan phase but also to its Restoration phase and to its finalculmination in the Glorious Revolution of 1688-89"-was fought not

8. See Dallas Lavoe Clouatre, From Order to Class: The Delegitimation of the ConceptualFoundations of Hierarchy (1990) (unpublished Ph.D. dissertation, University of California).

9. See A CRITICAL DICTIONARY OF THE FRENCH REVOLUTION 691 (Frangois Furet & MonaOzouf eds. & Arthur Goldhammer trans., 1989). Ferdinand Brunot asserts that Voltaire coined theexpression "Rights of Man." FERDINAND BRUNOT, 6 HISTOIRE DE LA LANGUE FRAN(AISE DESORIGINES A 1900, at 141-42 (1927). However, Brunot's citation is to a pamphlet published byVoltaire in 1768 invoking the somewhat different phrase "rights of men" as a basis for attackingpapal claims of sovereignty. See VOLTAIRE, Droits des Hommes et les Usurpations des Papes, in 27OEUVRES COMPLITES DE VOLTAIRE, MItLANGES VI, at 193-211 (1879).

10. An earlier generation of scholars argued that the Enlightenment had little or no influence inshaping the belief-system of the French revolutionaries. See, e.g., PETER GAY, THE PARTY OFHUMANITY: ESSAYS IN THE FRENCH ENLIGHTENMENT 176 (1971) ("The ideas of Voltaire, of theEncyclopedists, and of Rousseau played a relatively minor part in revolutionary speeches andthought."). This position has been effectively refuted by Francois Furet. See, e.g., FRANCOISFURET, INTERPRETING THE FRENCH REVOLUTION (Elborg Forster trans., 1981). Cf KEITH M.BAKER, INVENTING THE FRENCH REVOLUTION: ESSAYS ON FRENCH POLITICAL CULTURE IN THEEIGHTEENTH CENTURY 12-27 (1990); CAROL BLUM, ROUSSEAU AND THE REPUBLIC OF VIRTUE:THE LANGUAGE OF POLITICS IN THE FRENCH REVOLUTION (1986); Thomas E. Kaiser, TheStrange Offspring of Philosophie: Recent Historiographical Problems in Relating the Enlightenment tothe French Revolution, 3 FRENCH HIST. STUD. 549 (1988). Furet, quite correctly, for the most partavoids the term "Enlightenment" and speaks instead of the "philosophes."

11. See HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERNLEGAL TRADITION 19, 24-25, 30, 31 (1983) [hereinafter BERMAN, LAW AND REVOLUTION]; cf.Harold J. Berman, Law and Belief in Three Revolutions, 18 VAL. U. L. REV. 569, 591-92 (1984)[hereinafter Berman, Law and Belie].

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against but for the privileges of the aristocracy. Although it reduced thepower of the nobility that surrounded the monarch, "the court," itexalted the landed gentry, "the country." It did not abolish the hierar-chy of estates, or orders, but preserved that hierarchy within a frame-work of the supremacy of a House of Commons composed largely ofhereditary "gentlemen" and elected by not more than two or three per-cent of the adult male population.2 Moreover, Parliament, unlike theFrench National Assembly or subsequent French legislatures, did notpurport to represent public opinion. Indeed, the very phrase "publicopinion," or l'opinion publique, which originated both in England and inFrance in the early part of the eighteenth century, only acquired its polit-ical significance as a slogan of democratic opposition to royal policies andaristocratic privileges-again, in both countries-in the 1780s." a InFrance, however, after 1789, public opinion became a principal source ofthe legitimacy of political authority. In England, Parliament continuedto derive its authority not from public opinion but from public spirit.14

The differences between the two concepts are fundamental: French pub-lic opinion was understood to be a general consensus originating in therational discourse of enlightened citizens, while English public spirit was

12. The figure of two or three percent is derived from a review of statistics provided by CHRISCOOK & JOHN STEVENSON, BRITISH HISTORICAL FACTS, 1760-1830 (1980). Cook and Stevensonset out in tables the number of eligible voters in the various British constituencies compared to thetotal population as of 1831. To give some examples: Cambridgeshire had 3,000 franchised voterscompared to a population of 143,955; Cornwall had 2,500 voters compared to a population of302,440; Devon had 3,000 voters in a population of 494,478; Lancashire had 8,000 voters in apopulation of 1,336,854; and Yorkshire had 20,000 voters in a population of 1,371,675. Theimpression formed by reading the tables given by Cook and Stevenson is confirmed by a review ofthe statistics provided by Namier and Brooke on the number of eligible voters in the period 1754-1790. LEWIS NAMIER & JOHN BROOKE, 1 A HISTORY OF PARLIAMENT, THE HOUSE OFCOMMONS, 1754-1790 (1964). If anything, the figure of two or three percent would appear to err onthe side of generosity.

13. See J.A.W. GUNN, BEYOND LIBERTY AND PROPERTY: THE PROCESS OF SELFRECOGNITION IN EIGHTEENTH-CENTURY POLITICAL THOUGHT (1983), especially Chapter VI,"Public Spirit to Public Opinion." Gunn corrects the conventional view that the modern concept ofpublic opinion originated only in France. In both countries it originally referred to manners andreputation, and only in the 1770s and thereafter did it refer to political opinion. For the Frenchdevelopment of the concept, see Keith M. Baker, Politics and Public Opinion under the Old Regime:Some Reflections, in PRESS AND POLITICS IN PRE-REVOLUTIONARY FRANCE 204-46 (Jack R.Censer & Jeremy D. Popkin eds., 1987). Baker states that Rousseau was the first to use the termregularly, starting around 1750, but without developing its political significance, and that after 1770Jacques Necker and Jacques Peuchet systematically elaborated its political implications. See alsoMona Ozouf, L'opinion publique, in 1 THE FRENCH REVOLUTION AND THE CREATION OFMODERN POLITICAL CULTURE: THE POLITICAL CULTURE OF THE OLD REGIME 419-34 (Keith M.Baker ed., 1987). For evidence of the important role played by discussions of public opinion inNecker's circle in the 1780s, see ROBERT HARRIS, NECKER: REFORM STATESMAN OF THE ANCIENRIftGIME 86-87 (1979); ROBERT HARRIS, NECKER AND THE REVOLUTION OF 1789, at 287, 308-09(1986).

14. See GUNN, supra note 13. For a good analysis of the significance of the concept of the publicspirit of the aristocracy in eighteenth-century England, see M. OSTROGORSKI, I DEMOCRACY ANDTHE ORGANIZATION OF POLITICAL PARTIES 6-24 (Frederick Clarke trans., 1922). Ozouf points outthat the French phrase I'esprit public was synonymous with l'opinion publique. Ozouf, supra note13. It would be a mistake, however, to suppose that the French word esprit, in this context, issynonymous with the English word "spirit." A proper translation of l'esprit public would be "thepublic mind."

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understood to be a sense of responsibility and of service to the public-asense shared by public-spirited persons in responsible positions and rep-resented above all in the elite House of Commons. The former was ademocratic concept; the latter was an aristocratic concept.

Paradoxically, the ideology of the English Revolution was an ideologyof conservatism. In all its successive phases it claimed to restore-although in fact it radically transformed-the traditions of England,including especially the English common law. It culminated with a dec-laration not of the universal and timeless "rights of man" but of the"true, ancient, and indubitable rights of Englishmen."

The development of English religious and philosophical thought in theseventeenth century bore a close relationship to the transformation ofEnglish political and legal institutions. By the same token, it differedsharply from those aspects of eighteenth-century French religious andphilosophical thought that became associated with the French Revolu-tion. First, English thought was deeply influenced by Calvinist theology.The English Puritans, despite strong differences of belief among differentbranches, different sects, and indeed different congregations, shared thebelief that human history is wholly within the providence of God, that itis primarily a spiritual story of the unfolding of God's own purposes.This strong belief in divine providence led them to view England asGod's elect nation, destined to reveal and embody God's mission formankind. Second, the English Puritans believed that God willed andcommanded what Milton and others called "the reformation of theworld." Third, the Puritan concept of reformation of the world wasclosely connected with an emphasis on law as a means of such reforma-tion. A fourth element in the Puritan belief-system that strongly affectedthe development of English political and legal institutions was its empha-sis on the corporate character of Christian communities. Calvinist Puri-tanism was essentially a communitarian religion-the congregation ofthe faithful was to be "a light to all the nations of the world," "a city on ahill." This, in turn, led to an emphasis not only on hard work, austerity,frugality, discipline, self-improvement, and other features of what hascome to be called the Puritan work ethic, but also on public responsibil-ity, public service, cooperation, charity, and other qualities associatedwith the concept of public spirit. The adoption of a theory of absoluteliability for breach of contract by the English courts in the seventeenthcentury was a characteristic legal reflection of the seventeenth-centuryPuritan belief-system.15

15. In Paradine v. Jane, the traditional theory of contractual liability based on fault wasvigorously argued and rejected. For the report of the case, see Style 47, 82 Eng. Rep. 519 (1647).Most discussions of the case use only the report in Aleyn 26, 82 Eng. Rep. 897 (1648); however, thereport in Style needs also to be read in order to grasp the full significance of the case. The point isdeveloped in Harold J. Berman, The Religious Sources of General Contract Law: An HistoricalPerspective, 4 J. L. & RELIGION 103 (1986).

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Finally, and most directly connected with the English Revolution, Cal-vinist political theory declared that government by representative leadersof the community-"the elders," "the lower magistrates"-is superior togovernment by a single ruler-the prince. John Calvin had written thatthe best form of government is either "aristocracy or a system com-pounded of aristocracy and democracy," such as "the Lord establishedamong the people of Israel." The theological bases of this theory of tem-pered aristocracy were the doctrines of the sinfulness of man, his funda-mental selfishness and lust for power, on the one hand, and of thesalvation of "the elect," on the other.' 6

In the course of the seventeenth century all these features of EnglishPuritanism became absorbed into Anglican theology as well, although inAnglicanism, and in English political theory, they lost some of their orig-inal Puritan fervor and some of their Puritan theological foundations.

While Calvinist religious thought could, and sometimes did, lead to arigid and intolerant fundamentalism, it also could, and in England did,eventually lead to a more flexible and more tolerant approach to truth.The Calvinist philosopher and immigrant Huguenot Pierre Bayle, writ-ing in 1686, advocated a toleration of diverse religions based on the useof reason and the natural light. Bayle's concept of natural light was simi-lar to that of other seventeenth-century theologians and philosophers.Bayle did not call into question the truth of divine revelation, known bythe spiritual light of faith. He did, however, argue, as Descartes had alsothough in a quite different context, that all teachings, all dogmas aboutrevelation can and should be subjected also to the test of the natural lightof reason. If they failed that test, Bayle wrote, they should be considered"fragile." This led Bayle to the conclusion that within Protestant Chris-tianity there should be toleration of diverse religious confessions. 7

John Locke shared Bayle's view, writing in 1687 that "God has set upa candle in our souls ... bright enough for all our purposes," and thatconsequently there is no conflict between reason and true faith. 18 "Light,true light, in the mind," Locke wrote, "is, or can be, nothing else but theevidence of the truth of any proposition .... Reason must be our last

16. For a fuller treatment of the Puritan belief-system, see Berman, Law and Belief, supra note11, at 594-97. The reference to a "city on a hill" is taken from a sermon by John Winthrop; see id. at596 n.27. The reference to Calvin's belief in aristocracy as the best form of government is taken fromhis Institutes; see id. at 597 n.29. Cf John Witte, Jr.'s penetrating exploration of seventeenth-century Puritan influences on subsequent American constitutional ideas and institutions in How toGovern a City on a Hill: The Early Puritan Contribution to American Constitutionalism, 39 EMORYL.J. 41 (1990).

17. Pierre Bayle's principal work on religious toleration is his Commentaire philosophique sur cesparoles de Jisus Christ: contrains-les d'entrer. For a translation and commentary on this text, seeAMIE GODMAN TANNENBAUM, PIERRE BAYLE'S PHILOSOPHICAL COMMENTARY: A MODERN

TRANSLATION AND CRITICAL INTERPRETATION (1987).

18. JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING, quoted in MORTIER,supra note 1, at 19.

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judge and guide in everything." 19 This, of course, could also have beensaid by Descartes; for Locke, however, as for Bayle, the belief that natu-ral light confirms the truth divinely revealed to faith by spiritual lightwas coupled with the restriction of divine revelation to that which isfound in the Bible. Post-Biblical theological and ecclesiastical traditions,and especially disagreements among different Christian denominationsconcerning matters left open by Biblical revelation, were to be judged bynatural reason alone.2

' Thus Locke advocated a principle of toleration ofdissenting sects-a principle that was effectuated in the Toleration Act of1689.21 This was not, of course, disestablishment of the AnglicanChurch, to which Locke remained faithful, nor was it free exercise ofreligion such as was advocated by the French philosophes (and others) inthe next century.

The differences between what I shall henceforth call the "English" andthe "French" belief-systems, meaning those that were reflected in thepolitical and legal institutions that emerged after the seventeenth-centuryEnglish Revolution and the eighteenth-century French Revolutionrespectively, are vividly illustrated by a comparison of the 1689 EnglishDeclaration of the Rights and Liberties of the Subject--enacted by Par-liament as the Bill of Rights-with the 1789 French Declaration of theRights of Man and Citizen. The English Bill of Rights proceeds fromhistorical premises. It starts by listing eleven types of illegal conduct ofwhich the deposed monarch, James II, was guilty. It then states that"the lords spiritual and temporal, and commons . . . do . . . as theirancestors in like cases have usually done, for the vindicating and assert-ing of their ancient rights and liberties, declare" that certain types ofroyal policies and actions are illegal. These, again, are listed by number,and they correspond generally, with some additions, to the kinds ofrights which King James II was charged with violating. Many of themare violations of the rights of Parliament: the king may not suspend ordispense with its laws; he may not levy taxes without its authorization; hemay not keep a standing army within the kingdom in time of peace with-out its consent; elections of its members must be free and they must havefreedom of speech; and parliaments are to be held frequently. Others

19. Id.20. See JOHN LOCKE, THE REASONABLENESS OF CHRISTIANITY 251-56 (1811).21. Locke wrote:I esteem that toleration to be the chief characteristic mark of the true Church. For whatsoeversome people boast of the antiquity of places and names, or of the pomp of their outwardworship; others, of the reformation of their discipline; all, of the orthodoxy of their faith-foreveryone is orthodox to himself-these things, and all others of this nature, are much rathermarks of men striving for power and empire over one another than of the Church of Christ. Letanyone have never so true a claim to all these things, yet if he be destitute of charity, meekness,and good-will in general towards all mankind, even to those that are not Christians, he iscertainly yet short of being a true Christian himself.

John Locke, A Letter Concerning Toleration (1686), reprinted in JOHN T. NOONAN, THE BELIEVER

AND THE POWERS THAT ARE 78 (1987).

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concern violations of the civil rights of the subject: excessive bail, exces-sive fines, and cruel and unusual punishment are forbidden; trial by juryis guaranteed; and promises of fines and forfeitures of particular personsbefore conviction are illegal.

The 1689 Bill of Rights should be read together with the Act of Settle-ment of 1701, which in establishing the succession of Queen Anne to thethrone also declared that judges shall have tenure "so long as they con-duct themselves well"-in effect, life tenure-and may be removed onlyby vote of both houses of Parliament. It is presupposed in these docu-ments that the unwritten English constitution is a historically evolvingset of principles, embodied in such political and legal instruments as theMagna Carta of 1215, the Petition of Right of 1628, the Habeas CorpusAct of 1679, the Bill of Rights itself, and, perhaps above all, the commonlaw as it had evolved and continued to evolve in the decisions and opin-ions of the courts.

The French Declaration of the Rights of Man and Citizen embodiesquite different principles. It is not "the lords spiritual and temporal, andcommons" that enacts it but "the representatives of the French people."It sets forth not "the ancient rights and liberties of Englishmen" but "thenatural, inalienable, and sacred rights of man." It makes no reference tothe past. Instead it sets forth seventeen "natural and imprescriptiblerights of man." The first is that "men are born and remain free andequal in rights" and that therefore "social distinctions can be based onlyupon public utility." The second declares "liberty, property, security,and resistance to oppression" to be "natural and imprescriptible rights."The third states that "the source of all sovereignty is in the nation."Others include the propositions that the law has the right to forbid onlysuch actions as are injurious to society; that law is the expression of thegeneral will, in the formation of which all citizens have the right to par-ticipate; that no one may be accused, arrested, or detained except in casesdetermined by law and according to legal forms; that no one may bepunished except by virtue of a law previously promulgated; that a personis presumed innocent until pronounced guilty; that no one ought to bedisturbed because of his opinions provided they do not disturb the publicorder established by law; that the right to speak, write, and print freely is"one of the most precious rights of man" and may be restricted only if itis abused and only in cases determined by law; that "any society in whichthe guarantee of rights is not secured or the separation of powers notdetermined has no constitution at all"; and that "no one may be deprivedof the sacred and inviolable right of property unless public necessity sorequires and on condition of a just and prior indemnity."2

22. Other human rights listed in the French Declaration include the right of individuals toconsent to taxation, either personally or through their representatives, and the right of society todemand an accounting from public employees. For a complete text of the French Declaration, see

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It is apparent that the French "rights of man and citizen" are theproduct of minds strongly influenced by the rationalist and individualistbelief-system of the philosophes of the previous two generations. The1689 English "rights of English subjects," on the other hand, are theproduct of minds strongly influenced by the English historicist philoso-phy of the Puritans and the common lawyers who combined initially tolead the Revolution of Parliament.

The differences between what I have, for convenience, called the Eng-lish and the French philosophies-although each had adherents in virtu-ally all the countries of Europe-were developed dramatically and atlength in the famous controversy between Edmund Burke and ThomasPaine. Burke, in his Reflections on the French Revolution (1790), defend-ing the English Revolution, glorified tradition and the corporate evolu-tion of the English people. A nation, he wrote in a famous passage, isindeed formed by a social contract but it is a contract of partnership ofpast, present, and future generations, not to be confused with a contractfor the sale of goods.23 Burke looked for the source of liberty not in thewill of transitory majorities but in the public spirit of the leaders of thenation in Parliament and on the bench. Responding to Burke's book,Paine, in his Rights of Man (1791), defending the French Revolution,glorified reason-that is, the rationality of each person-and saw thenation as a voluntary association of individuals. He looked for the sourceof liberty in the public opinion of a given society at a given moment.Thus issue was joined not only between two men but between two belief-systems, each associated with a different set of political and legalinstitutions.

III. "ENGLISH" AND "FRENCH" ASPECTS OF AMERICAN

CONSTITUTIONAL LAW

I turn now to the American Revolution and American constitutionallaw, and to a consideration of the relationship between the religious andphilosophical ideas that were dominant in America during the decadesprior to 1787-1791-when the United States Constitution, including theBill of Rights, was adopted-and the political and legal institutionsreflected in that constitution as well as in the earliest state constitutions.

The American Revolution has two faces. From one perspective, it

VINCENT MARCAGGI, LES ORIGINES DE LA DtCLARATION DES DROITS DE L'HOMME DE 1789, at227-31 (2d ed. 1912).

23. Society is indeed a contract.... [B]ut the state ought not to be considered as nothingbetter than a partnership agreement in a trade of pepper and coffee, calico, or tobacco... to bedissolved by the fancy of the parties.... It is a partnership in all science; a partnership in allart; a partnership in every virtue and in all perfection. As the ends of such a partnership cannotbe obtained in many generations, it becomes a partnership not only between those who areliving, but between those who are living, those who are dead, and those who are to be born.

EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 84-85 (J.G.A. Pocock ed.,Hackett Publishing Co. 1987) (1790).

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appears as a war of secession, fought by the colonists to secure for them-selves the same rights that their English cousins enjoyed in the mothercountry. It was this aspect of the Revolution that was emphasized in theDeclaration of Rights of the First Continental Congress of 1774, whichdemanded for the colonists "all the rights, liberties, and immunities offree and natural-born subjects within the realm of England. '2 4 Many ofthese "rights, liberties, and immunities" had been denied to them. UnderBritish imperial law, the American colonists were not entitled to theEnglish common law as a matter of right, but only to those parts of itwhich the Privy Council considered to be applicable to their condition.They were not entitled as a matter of right to the benefit of such com-mon-law statutes as Magna Carta, the Petition of Right, the HabeasCorpus Act, the Bill of Rights of 1689, or to any other statutes that wereenacted before settlement of the colonies, nor were they entitled to thebenefit of post-settlement statutes unless the colonies were speciallynamed in them. They were not entitled to trial by jury. Moreover, theirgovernors were appointed by the Crown, and their judges were subject toremoval by the Crown. In short, they were under royal prerogative pow-ers which Parliament had successfully fought to abolish at home in theperiod from 1640 to 1689 but which Parliament had insisted be exercisedin the overseas colonies. Perhaps most important of all, the colonistswere not represented in Parliament. According to this point of view,they fought the War of Independence to secure for themselves the polit-ical and legal institutions which had been forged in the fires of theEnglish Revolution. This was the "English" face of the AmericanRevolution.

From another perspective, however, the American Revolution appearsnot as a movement to assert the rights of colonists to English forms ofgovernment and English law, but rather as a movement to establish anew kind of government and law which would be essentially differentfrom English law. Thomas Jefferson, who was an exponent of the latterview, said some years after the Revolution, "I deride... with you theordinary doctrine, that we brought with us from England [and hencewere entitled to] the common law rights. This narrow notion was a favor-ite in the first moment of rallying to our rights against Great Britain.But it was that of men who felt their rights, before they had thought oftheir explanation. The truth is, that we brought with us the rights ofmen, of expatriated men."25

24. See Declaration and Resolves of the First Continental Congress, in 1 DOCUMENTS OFAMERICAN HISTORY: TO 1898, at 82-85 (Henry S. Commager & Milton Cantor eds., 10th ed. 1988).In the Resolutions of the Stamp Act Congress (1765), a similar demand was made upon the BritishGovernment: "His Majesty's liege subjects in these colonies are intitled to all the inherent rights andliberties of his natural born subjects within the kingdom of Great Britain." Id. at 58.

25. Quoted in 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITEDSTATES 105 n.1 (3rd ed. 1858).

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Jefferson's philosophy of the natural and equal rights of all men, and ofthe right of the majority of the community to overthrow a governmentwhich does not protect such rights-so vividly expressed by him in theVirginia Bill of Rights of June 12, 1776, and in the first paragraph of theDeclaration of Independence-links the American Revolution not to theEnglish Revolution, whose ideology was essentially traditionalist andwhose political structure was essentially aristocratic and corporate, butrather to the subsequent French Revolution, whose ideology was essen-tially rationalist and whose political structure was essentially democraticand individualistic.

It is a striking fact that Burke and Paine, from completely oppositeideological standpoints, could both support the American cause. Burkesaw it primarily as a War of Independence. Paine saw it as a Revolution-ary War. It would be a grave mistake, however, to suppose that eachAmerican colonist who supported the American cause fell on one side ofthis ideological division or the other. On the contrary, most of them,probably, and certainly many of their leaders-men such as JohnAdams, James Wilson, and James Madison-somehow accommodatedthe tension between the two perspectives.

These three-Adams, Wilson, Madison-each of whom played amajor role in shaping American constitutional law at its formation-were men of strong Protestant Christian convictions. None of themaccepted the dogmatic rationalism and individualism that was character-istic of the Deistic thought of such men as Franklin, Paine, or Jefferson.26

Nevertheless, they enthusiastically supported democratic political insti-tutions and the natural rights and liberties of the individual against aris-tocratic privilege and monarchical prerogative, although they alsosupported substantial constitutional restraints upon the will of the major-ity. Finally, all three believed firmly in the English common law with itsstrong element of historicity, of continuity between past and future. Insum, they combined and reconciled, albeit each in his own way, liberalideas that were preached by the French philosophes and their English andAmerican sympathizers and which ultimately found reflection in the con-stitutional law of the first French Republic, on the one hand, and, on theother hand, conservative ideas-in the Burkean sense-that had beenpreached by supporters of the seventeenth-century English Revolutionsuch as John Milton and Matthew Hale and which had found reflection

26. In the 1770s, Benjamin Franklin proposed that the Deistic Society of London, which he hadbeen instrumental in creating, be transformed into a "church" replete with liturgy and a "priest ofnature." The Society flourished through much of the late 1770s and early 1780s, and included asparticipants such figures as Thomas Paine, Dupont de Nemours, and, in all likelihood, the Englishradicals Richard Price and Joseph Priestley. David Williams, who served as a "priest of nature,"preached regularly in the Society's "chapel." On the activities of this Society, see Nicholas Hans,Franklin, Jefferson, and the English Radicals at the End of the Eighteenth Century, 98 PROC. AM.PHIL. Soc'y 406 (1954).

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in the development of English constitutional law in the late seventeenthand eighteenth centuries.

The surprising fact that both sides in this great religious-philosophicaland political-legal debate could appeal to the writings of John Locke isdue to the greatly neglected fact that those writings could be construedeither as a justification of the aristocratic, traditionalist, and communi-tarian English Revolution or as a foundation of the democratic, rational-ist, and individualist program eventually embodied in the FrenchRevolution.

A. The Declaration of Independence

The ambiguity of the American Revolution is symbolized by the Dec-laration of Independence of July 4, 1776, which Donald Lutz has rightlycompared to a "covenant" or "compact" to which the United StatesConstitution is the "charter. '2 7 It is best known, perhaps, for its openingparagraph, undoubtedly written by Jefferson, which is in what I call the"French" mode: Deistic in its reference to Nature and Nature's God;rationalistic in its declaration of self-evident universal truths; individual-istic in its affirmation of the equal rights of all men to life, liberty, and thepursuit of happiness; and democratic in its assertion of the right of thepeople to establish the kind of government that represents their will. Inthese respects, and in its subsequent assertion of certain specific civilrights and liberties, the American Declaration of Independence served asa model for the French Declaration of the Rights of Man and Citizen of1789. On the other hand, the main body of the Declaration of Indepen-dence is closely modelled on the English Declaration of Rights of 1689.In the English style, it presents a bill of particular grievances, a list ofspecific violations by King George III-quite comparable to those ofJames II--of the political and civil rights of the colonists. It is of someinterest that in a contemporary American edition of Blackstone's Com-mentaries on the Laws of England, at a point where Blackstone wroteabout the 1689 English Bill of Rights, the American editor inserted afootnote stating that "[t]he American student who has read with care theDeclaration of Independence will see that the framers of it had this[1689] declaration in mind and intended to keep strictly within theprecedent."28

Perhaps John Adams is the person who best represented, both inthought and in action, the combination of these two aspects of the Amer-ican Revolution.29 In his writings generally, and especially in his letters,

27. DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 114 (1988).28. Quoted in EUGEN ROSENSTOCK-HUESSY, OUT OF REVOLUTION: THE AUTOBIOGRAPHY OF

WESTERN MAN 645-46 (1938).29. In a stimulating article on custom and reason in eighteenth-century American legal thought,

James Whitman argues that John Adams (like other revolutionary lawyers) "confused" the common

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he denounced the extreme views of such men as Paine and Rousseau.3°

Yet he could sign the Declaration of Independence with enthusiasm andcould remain a close lifelong friend of Thomas Jefferson. His own opera-tive political philosophy at the time of the outbreak of the AmericanRevolution is best reflected in the Massachusetts Constitution of 1780, ofwhich he was the principal draftsman.3'

B. State and Federal Constitutions

In late 1775, the Second Continental Congress resolved that the colo-nies draft constitutions that would "establish some form of government"independent of the Crown. In September 1776, a popularly electedPennsylvania constitutional convention, presided over by BenjaminFranklin, adopted such a constitution. Thomas Paine was among thosewho participated in its drafting, and, not surprisingly, it reflects what Ihave called "French," or "liberal," conceptions. It is divided into a

law with natural law. He adduces as evidence Adams' statement in 1765 that "the foundations ofBritish laws and government [are to be found] in the frame of human nature, in the constitution ofthe intellectual and moral world." James Q. Whitman, Why Did the Revolutionary Lawyers ConfuseCustom and Reason?, 58 U. CHI. L. REV. 1321, 1321 (1991). To suggest, as Whitman does, thatAdams and his fellows were guilty of an "unclear mingling" and of "unreflectively conflating"common law (or customary law) and natural law (or reason) neglects the possibility that the"mingling" was clear and the "conflating" was reflective. Id. at 1322, 1323. In fact, Adamsconsciously combined the historical theory on which the English law was based with a moral theoryof human nature such as was expounded by the "enlightened" philosophers of his time. AsWhitman implicitly recognizes, the split between the three major schools of jurisprudence-positivism, natural-law theory, and the historical school-only materialized in the nineteenth andtwentieth centuries. Cf Harold J. Berman, Toward an Integrative Jurisprudence: Politics, MoralityHistory, 76 CAL. L. REV. 779 (1988).

30. Writing to his wife in March 1776, Adams criticized Paine in the following terms:Sensible men think there are some whims, some sophisms, some artful addresses to superstitiousnotions, some keen attempts upon the passions, in this pamphlet. But all agree there is a greatdeal of good sense delivered in clear, simple, concise and nervous style. His sentiments of theabilities of America, and of a difficulty of a reconciliation with Great Britain, are generallyapproved. But his notions and plans of continental government are not much applauded.Indeed this writer has a better hand in pulling down than building.

Quoted in J. PAUL SELSAM, THE PENNSYLVANIA CONSTITUTION OF 1776: A STUDY IN REVOLU-TIONARY DEMOCRACY 172-73 (1936). Adams used far less temperate language in a subsequentletter to Benjamin Waterhouse, describing Paine as "mongrel between pig and puppy, begotten by awild boar on a bitch wolf." Quoted in EDWARD HANDLER, AMERICA AND EUROPE IN THE POLIT-ICAL THOUGHT OF JOHN ADAMS 176 (1964).

Writing to Richard Price in April 1790, Adams observed: "The Revolution in France could not beindifferent to me; but I have learned by awful experience, to rejoice with trembling. I know thatencyclopedists and economists, Diderot and d'Alembert, Voltaire and Rousseau, have contributed tothis great event more than Sidney, Locke, or Hoadly, perhaps more than the American Revolution;and I own to you, I know not what to make of a republic of thirty million atheists." A quartercentury later, Adams wrote to Thomas Jefferson: "I have never read reasoning more absurd, sophis-try more gross, in proof of the Athanasian creed or transubstantiation than the subtle labors ofHelv6tius or Rousseau to demonstrate the natural equality of mankind." Both letters are quoted inZOLTAN HARASZTI, JOHN ADAMS AND THE PROPHETS OF PROGRESS 81 (1952).

31. John Adams took pride in his role in the drafting of the Massachusetts Constitution.Writing to a friend shortly after its ratification he stated: "There never was an example of suchprecautions as are taken by this wise and jealous people in the formation of their government. Nonewas ever made so perfectly upon the principle of the people's rights and equality. It is Locke,Sidney, and Rousseau and De Mably reduced to practice, in the first instance." Quoted inHARASZTI, supra note 30, at 80.

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"Declaration of Rights" and a "Frame of Government." The Declara-tion of Rights proclaims in broad terms freedom of worship, speech,press, and assembly; the right to jury trial; the right to counsel in crimi-nal cases; protection against unreasonable searches and seizures; andother liberties and rights. The Frame of Government provides for a uni-cameral legislature elected annually by all taxpayers, with proportionalrepresentation so as to "make the voice of a majority of the people thelaw of the land"; an executive consisting of a council of twelve persons,also directly elected, to serve no longer than three years, with continualrotation; and a judiciary to be appointed by the president of the council,with judges of the supreme court to serve for a term of seven years. Apopularly elected Council of Censors was to be chosen every seven yearsto review the constitutionality of legislative and executive actions, to takequite limited steps to correct any that were in violation of the constitu-tion, and, if necessary, periodically to call constitutional conventions topropose amendments for submission to the people.32

The Massachusetts Constitution of 1780, drafted originally by JohnAdams, resembles the Pennsylvania Constitution of 1776 in certainrespects. Its Preamble proclaims a radically democratic theory of gov-ernment,3 3 and its Declaration of Rights contains a list of "natural andinalienable" civil rights and liberties.34 Its Frame of Government, how-ever, provides for a bicameral legislature, with strict property qualifica-tions for membership in the House of Representatives and even stricterproperty qualifications for membership in the Senate.35 Moreover, thegovernor, although directly elected, was required to have landed prop-

32. For a text of the Pennsylvania Constitution of 1776, see 5 AMERICAN CHARTERS,CONSTITUTIONS, AND ORGANIC LAWS 3081-92 (Francis N. Thorpe ed., 1909). For a helpful guideto the circumstances leading up to the drafting and ratification of the Pennsylvania Constitution, seeSELSAM, supra note 30.

33. The Preamble of the Massachusetts Constitution of 1780 states:The end of the institution, maintenance, and administration of government, is to secure theexistence of the body politic, to protect it, and to furnish the individuals who compose it withthe power of enjoying in safety and tranquility their natural rights, and the blessings of life: andwhenever these great objects are not obtained, the people have a right to alter the government,and to take measures necessary for their safety, prosperity, and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, bywhich the whole people covenants with each citizen, and each citizen with the whole people,that all shall be governed by certain laws for the common good.

3 AMERICAN CHARTERS, CONSTITUTIONS, AND ORGANIC LAWS 1888-89 (Francis N. Thorpe ed.,1909).

34. Article I of the Massachusetts Declaration of Rights begins: "All men are born free andequal, and have certain natural, essential, and unalienable rights; among which may be reckoned theright of enjoying and defending their lives and liberties; that of acquiring, possessing, and protectingproperty; in fine, that of seeking and obtaining their safety and happiness." Id. at 1889.

35. To be elected to the House of Representatives one must have been seised of a freehold estateworth at least one hundred pounds or owned any other ratable estate of at least two hundred pounds.To be elected to the Senate, one must have been seised of a freehold estate worth at least threehundred pounds or have owned any other ratable estate worth at least six hundred pounds. See id.at 1897, 1898. The House and Senate also reflected different theories of representation.Representation in the House was determined upon the basis of "equality," which translated into asystem of representation proportional to the population. Representation in the Senate, however, was

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erty in the Commonwealth of the value of at least one thousand pounds.Also, despite a provision calling for absolute separation of legislative,executive, and judicial powers, the governor was given the right to vetolegislation, subject to being overridden by a two-thirds majority of thatbranch of the legislature which originated the legislation.36 Moreover,the judiciary was given life tenure-again, an important restraint notonly on the executive but also on the legislative power.37

The Massachusetts Constitution of 1780 also differed substantiallyfrom the Pennsylvania Constitution of 1776 in its provisions on religion,which transplanted to Massachusetts the English principle of an estab-lished church (in practice, it was the Congregational Church), coupledwith toleration of all (Protestant) Christian denominations. All govern-ment officers were required to swear their belief in "the Christian reli-gion." In addition, the Massachusetts Constitution in several provisionsdeclared that "piety, religion, and morality" as well as "wisdom, knowl-edge, [and] virtue" are "necessary for the preservation of [the people's]rights and liberties" and provided for the appointment of Protestantteachers by the towns and for the support by the legislature of religiouseducational institutions, including Harvard College.38 These provisionsreflected the framers' strong belief that Christian values were needed as afoundation for a public spirit, or public virtue, that would guide and bal-ance public opinion.

Thus the Massachusetts Constitution combined the strong "liberal"belief (as it would later be called) that, as stated in the Preamble, "thebody politic is formed by a voluntary association of individuals" and thatwhenever the natural rights of the individuals who comprise the bodypolitic are not protected "the people have a right to alter the govern-ment," with the equally strong "conservative" belief that the will of themajority must be balanced by an elite leadership, based not on heredityas such but on economic wealth and public spirit.

Indeed, the need to balance the power of the one, the few, and themany was a constant theme in the writings of John Adams. It wasexpressed also as the need to balance the power of the legislative, execu-tive, and judicial branches, as well as the need to balance, within thelegislative branch, the power of two chambers whose members wereselected according to different principles.

This was not separation of powers in the sense advocated by Montes-

determined upon the basis of taxation: the more taxes a given electoral district contributed, thelarger would be its delegation in the Senate.

36. For the provision establishing the veto power of the Massachusetts governor, see id. at 1893-94.

37. All "judicial officers," according to the Massachusetts Constitution, were to "hold theiroffices during good behavior." Id. at 1905. This was the conventional language for life tenure,derived from the English Act of Succession of 1701. See supra p. 320.

38. See 3 AMERICAN CHARTERS, CONSTITUTIONS, AND ORGANIC LAWS, supra note 33, at1889-90, 1906-08.

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quieu on the basis of his misreading of English parliamentarism andtaken up by Voltaire and others. For the French philosophes, the powersto be separated were primarily the executive and the legislative; the judi-ciary was to be independent of the executive but entirely subordinate tothe legislative branch, having the function merely of applying legislationto specific cases. For the Americans, however, the judiciary was a bal-ance both to the legislative and to the executive branches. Judges wereunderstood to have a law-shaping function through the doctrine of prece-dent. It was presupposed that the English common law survived, at leastin part, in the constitutional law of the new republic. Eventually, thelaw-shaping function of the judges was enhanced by their power to refuseto enforce statutes that violated the constitution.

In general, seventeenth-century aristocratic and conservative Englishideas played a role in the early development of American constitutionallaw at least equal to democratic and liberal ideas that were preached inthe eighteenth century by the French philosophes-as well as by Englishand other European reformers-and that ultimately came to prevail inFrench constitutional law. This was true of most of the early state con-stitutions39 and especially of the United States Constitution of 1787. Thebicameral legislature is one example. The members of the U.S. Senate,elected for long terms and, at first, by the state legislatures, were sup-posed, like the members of the House of Commons, to represent thenation as a whole, while the members of the House of Representatives,like the members of the French Estates General, were supposed to repre-sent their particular constituencies. The Supreme Court is anotherexample. It was, indeed, a kind of House of Lords-which is also, infact, the supreme judicial body in England. Likewise, the president, wholike the senators was at first elected indirectly, was, in foreign policy atleast, a kind of monarch, albeit not a hereditary monarch.

Even the written constitution played-and plays-a role in Americanlaw that is similar in some respects to the role of the unwritten constitu-tion in English law. It is true that its language is fixed; yet the meaningof the words is subject to development by judicial interpretation-devel-opment in the light of earlier judicial interpretations. And so a Burkeanhistoricity enters into American constitutional law, and one may say thatthe United States Constitution represents a partnership of the genera-tions over time.

Yet the same persons who carried over and adapted English traditionsto the new republic-men such as Wilson and Madison-also introducedinto the United States Constitution, in modified form, democratic and

39. New Hampshire, New Jersey, New York, North Carolina, Georgia, and Virginia were theother states to draft constitutions in the late 1770s in response to the resolution of the SecondContinental Congress. Pennsylvania and Massachusetts are discussed here because of the strikingdifferences they present between the operational beliefs of their authors, especially Paine and Adams.

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liberal ideas associated with the eighteenth-century, Europe-wide reformmovement whose underlying belief-system was most effectively articu-lated by the French philosophes and which culminated in the FrenchRevolution. These included not only the idea of a written constitution, amodified doctrine of separation of powers, and the theory of a govern-ment directly responsible to the opinion of the electorate, but also, andeven more striking, guarantees of freedom of religion, speech, press, andassembly. Indeed, the entire Federal Constitution gives political andlegal expression to the eighteenth-century concept that all persons, byvirtue of their human nature, possess certain universal and equal rightsto life, liberty, and property, which it is the obligation of government, ifnot always to protect, at least never to repress.

IV. THE "RADICALISM" OF AMERICAN CONSTITUTIONAL LAW4'

A part of the "radicalism" of the American Revolution is that itbrought forth, ultimately, federal and state constitutions which combinedthe conflicting belief-systems-in a nutshell, Puritanism, traditionalism,and communitarianism versus Deism, rationalism, and individualism-that found expression in the seventeenth-century English Revolution andthe eighteenth-century French Revolution, as well as the conflictingpolitical systems associated with those belief-systems-again in a nut-shell, aristocracy based on public spirit versus democracy based on pub-lic opinion. The Americans seized the dilemma by both horns. Whatwas radically new in American constitutional law was not restricted,however, to this synthesis of seeming opposites. The new Americanrepublic also introduced constitutional principles which were neither"English" nor "French" nor a combination of the two, and, indeed,which had never existed before in the West in anything like the sameform. One of these was American federalism.4 Closely related to it wasa principle that might be called continentalism-the implicit provisionfor an expanding polity of continental scope, with unlimited mobility andunlimited absorption of immigrants. A third principle was the establish-ment of a government of delegated powers. A fourth was the institutionof judicial review of the constitutionality of legislation. This list, which ishardly exhaustive, indicates areas of inquiry that lie beyond the scope ofthis essay. American constitutionalism-the word itself is an American

40. The title of this section is adapted from GORDON S. WOOD, THE RADICALISM OF THE

AMERICAN REVOLUTION (1992) [hereinafter WOOD, RADICALISM]. Wood, however, sees little ifany "radicalism" in the constitutional law that emerged from the Revolution, at least at the federallevel.

41. See VINCENT OSTROM, THE MEANING OF AMERICAN FEDERALISM: CONSTITUTING ASELF-GOVERNING SOCIETY (1991). Ostrom shows the depth of the meaning of federalism asunderstood in late eighteenth-century America, including its basis in the religious concept ofcovenant (foedus). The theory of federalism reflected in The Federalist, he writes, challengedtraditional concepts of sovereignty and reflected instead "a theory of concurrent, compoundrepublics that enables democratic societies to reach out to continental proportions." Id. at 97.

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invention-introduced something quite new into the Western politicaland legal tradition, something that is not embraced in the concept of the"Enlightenment" however broadly defined.

It is necessary to stress this because in recent decades efforts of manyAmerican historians to identify what was truly "radical" in the Ameri-can Revolution have tended to focus attention on what has been calledthe "republican synthesis," that is, a more or less universal adherence to"republicanism" by Americans who supported the Revolution. As"republicanism" was first defined, in the 1960s, it consisted not only of arejection of monarchy in favor of an elective system, but also of a belief incivic virtue, the public good, organic community, and Puritan virtues.42

In their adherence to republicanism in this broad sense, the most diversefigures of the Revolutionary era were joined: John Adams and ThomasPaine, James Wilson and Samuel Adams, James Madison and BenjaminFranklin, Thomas Jefferson and Alexander Hamilton, the aristocraticLivingstons of New York and the democratic Pennsylvanians of 1776."3

In the "republican synthesis" the conflict between what I have calledhere "English" and "French" ideas was submerged in the common ideal-ism of the revolutionaries.' Indeed, the conflicting English and Frenchbackgrounds of American religious, philosophical, political, and legalthought were-and still are-hardly discussed by the American histori-ans of the Revolution, although at various points a coincidence of some

42. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 46-90(1969) [hereinafter WOOD, CREATION]. "The sacrifice of individual interests to the greater good ofthe whole formed the essence of republicanism and comprehended for Americans the idealistic goalof their Revolution." Id. at 53. The term "republican synthesis" was first used by Robert Shalhopein Toward a Republican Synthesi" The Emergence of an Understanding of Republicanism inAmerican Historiography, 29 WM. & MARY Q. 49 (3d ser. 1972).

43. See WOOD, CREATION, supra note 42. In his most recent book, however, Wood is somewhatmore cautious, distinguishing between "republicanism" and "democracy," although still insisting atone point that "democracy was an extension of republicanism." WOOD, RADICALISM, supra note40, at 231; see infra text accompanying note 47. Much depends, of course, on the definition not onlyof republicanism but also of democracy. In The Federalist No. 10, James Madison sharplycontrasted the two. He wrote:

[D]emocracies have ever been spectacles of turbulence and contention; have ever been foundincompatible with personal security or the rights of property; and have in general been as shortin their lives as they have been violent in their deaths....

The two great points of difference between a democracy and a republic are: first, thedelegation of the government, in the latter, to a small number of citizens elected by the rest;secondly, . . . the greater number of citizens and extent of territory which may be broughtwithin the compass of republican than of democratic government....

[T]he ... advantage which a republic has over a democracy... consist[s] in the substitutionof representatives whose enlightened views and virtuous sentiments render them superior tolocal prejudices and to schemes of injustice ... [and] in the greater obstacles opposed to theconcert and accomplishment of the secret wishes of an unjust and interested majority....

THE FEDERALIST PAPERS No. 10, at 126-28 (James Madison) (Isaac Kramnick ed., 1987).44. The emphasis on "republicanism" was itself a historiographical reaction to a school of

thought originated by Louis Hartz, who argued that liberalism was the "consensus" of Americanpolitical thought in the eighteenth century, with priority given to individualism and property rights.See Louis HARTZ, THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF POLITICALTHOUGHT SINCE THE REVOLUTION (1955).

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of the most salient features of eighteenth-century American republican-ism with English Whig conceptions has been noted.

In view of the extraordinary diversity of meanings that can be attachedto the word "republicanism," it well deserves the comment of JohnAdams himself, who in 1807 wrote that "[f]raud lurks in generals. Thereis not a more unintelligible word in the English language than republi-canism," and that he had "never understood" what it was and thoughtthat "no other man ever did or ever will." 45

Partly, no doubt, because of the ambiguities in the term itself andpartly because of the difficulty of reconciling as an abstract matter theviews of what may be called "conservative" republicans such as JohnAdams with those of what might be called "liberal" republicans such asThomas Paine, the concept of republicanism has undergone substantialmodification at the hands of those who pioneered it.4" In 1992, its lead-ing exponent developed the thesis that the true "radicalism" of theAmerican Revolution consisted in the virtual abandonment of the repub-lican ideals of the Revolutionary generation in favor of the democraticmovement of the early 1800s.4"

Notions of eighteenth-century republicanism, and of a conflict betweenrepublicans and liberals, were taken up in the 1980s by various Americanlegal scholars as a basis for understanding the Federal Constitution.48

Indeed, the editors of a leading law school casebook on American consti-tutional law, published in 1986, adopted the view previously expressed bysome historians that the Anti-Federalists were ardent republicans, whoopposed ratification of the Constitution on the ground that it limited the"opportunity to participate in public affairs" at the local and state levelsand thus "threat[ened] . . .civil virtue." The Federalists, on the other

45. Cf. Linda K. Kerber, The Republican Ideology of the Revolutionary Generation, 37 AM. Q.474 (1985); WOOD, CREATION, supra note 42, at 48. Wood states unconvincingly that Adams in hislater years was "bewildered" and "confused" about the meaning of the term "republicanism," sincehe had used it often enough in his earlier years. If Adams was confused, so were others. Forexample, James Madison wrote: "[w]e may define a republic to be... a government which derives allits powers directly or indirectly from the great body of the people .... THE FEDERALIST PAPERSNo. 39, at 255 (James Madison) (Isaac Kramnick ed., 1987). Understood this broadly, evenmonarchies can be-and were-seen as republics. Montesquieu, writing in his Esprit des Lois(1748), asserted that England "may be called a republic disguised under the form of a monarchy."Quoted in WOOD, RADICALISM, supra note 40, at 98. Wood himself repeats this assertion when hewrites that the term did become "at times virtually indistinguishable from monarchy." Id. at 95-96.

46. See Robert Shalhope, Republicanism and Early American Historiography, 39 Wm. & MARYQ. 334, 335 (3d ser. 1982) ("Many scholars have either raised serious questions about . . .republicanism ...or [have] gone beyond it. The result is an increasingly diverse and at timesseemingly inconsistent body of literature that casts republicanism in an enigmatic role."). Cf.BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 29-32 (1991).

47. See WOOD, RADICALISM, supra note 40, at 230ff.48. See, e.g., Morton Horwitz, The Constitution in Perspective: Republicanism and Liberalism in

American Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987); Morton Horwitz, Historyand Theory, 96 YALE L.J. 1825 (1987); Frank Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986); Frank Michelman, Law'sRepublic, 97 YALE L.J. 1493 (1988); Mark Tushnet, The U.S. Constitution and the Intent of theFramers, 36 BUFF. L. REV. 217 (1987).

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hand, were said to have had a "liberal" philosophy which was skepticalof communitarian values and gave priority to individual interests, includ-ing, especially, private rights of property.49 A crucial difficulty with thisanalysis, however, is that some of the same Founding Fathers-Adamsand Wilson, for example-fit both the "republican" and the "liberal"models.50

Yet to say that such people were "liberal republicans"' is to run therisk of conflating the two models entirely and thus of obscuring the realtension that existed in Revolutionary America-and still exists today-between two conflicting systems of thought and action, one of which wasinherited from the seventeenth-century English Revolution and the otherof which eventually found expression in the eighteenth-century FrenchRevolution. Adams and Wilson succeeded in accommodating that ten-sion not only in their own minds but also in the constitutional settle-ments that they helped to achieve.

V. HISTORIOGRAPHICAL CONCLUSIONS

I conclude with a discussion of what the approach that I have taken inthis essay can contribute to the historiography of the Enlightenment, onthe one hand, and of American constitutional law, on the other.

In the past, the approaches that have dominated the historiography ofthe American Revolution have, to a very considerable extent, focusedeither on the history of ideas or on the history of institutions, withoutattempting to bring the two together in any systematic way. The majordefect of both these approaches lies chiefly in their separation. Morerecently, some scholars have sought to show more systematically theeffects of the ideas of those who made the Revolution on the legal institu-tions that were created in the following generation. These admirableefforts have, however, themselves suffered from the defects of the earlierhistoriography.

The ideological approach confronts the difficulty of establishing therelative historical importance of particular sets of ideas. On the basis of astudy of philosophical, religious, political, and other literature of thetime, the intellectual historian seeks to sort out the very wide variety of

49. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 2-7 (1986).50. John Adams, for example, argued strenuously for the protection of private property, a

seemingly "liberal" idea, but at the same time was a staunch advocate for governmental support ofeducation, a seemingly "republican" idea. James Wilson was a strong believer in civic virtue andwas skeptical about the primacy of private property rights, seemingly "republican" ideas, but was atthe same time one of the strongest advocates for the ratification of the U.S. Constitution and itscreation of a federal republic. Different scholars have labeled different historical personages as"liberal" or "republican." Compare Horwitz, History and Theory, supra note 48, at 1831 (AdamSmith was a republican) with ISAAC KRAMNICK, REPUBLICANISM AND BOURGEOIS RADICALISM:

POLITICAL IDEOLOGY IN LATE EIGHTEENTH-CENTURY ENGLAND AND AMERICA 8-11 (1990)(Adam Smith was a liberal).

51. Ackerman opts for this solution. ACKERMAN, supra note 46.

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ideas expressed, and to characterize those most widely held. But thisscholarly enterprise is seriously handicapped by the inherent fluidity ofideas. Also, a given author of ideas-John Adams, for example-mayhold different ideas at different times, and may even hold conflictingideas at the same time. Moreover, it is a misguided enterprise to charac-terize ideas taken out of the context of the circumstances in which theywere uttered and the problems to which they were addressed. This isespecially true of ideas that constituted the philosophies not of profes-sional philosophers but of political actors.

It is probably due, at least in part, to such defects that the history ofideas-so-called intellectual history-tends to resort to broader andbroader categories. As we have seen, great debates have taken placebetween those who stress the importance of "republicanism" in lateeighteenth-century America-a word that has eventually been defined sobroadly that it could be translated simply as "patriotism"-and thosewho stress the importance of "liberalism"-a word that, in turn, hasbeen defined so broadly that it could be characterized simply as a beliefin limitations upon the power of government.

It is undoubtedly a big step forward to include in the intellectual his-tory of America a study of the history of the European Enlightenment.Many American historians seem to have almost entirely forgotten that,except for the disfranchised Indians and blacks, all the eighteenth-cen-tury Americans were Europeans. Their leaders were steeped in Euro-pean thought. But once again, if the Enlightenment is seen simply as anideology, it becomes so broad as to include fundamentally contradictoryideologies over which conflicting political parties fought, bled, and died.It makes little sense to call both Burke and Paine, or both the eighteenth-century Deist Diderot and the seventeenth-century Calvinist PierreBayle, "Enlightenment" thinkers. It is historically more accurate to con-fine the term "Enlightenment" to the "natural light" which animated theFrench philosophes from Voltaire to Condorcet, together with their manyallies in the other countries of Europe, that is, the men and women whoseprincipal beliefs were ultimately embodied in the institutions that devel-oped out of the French Revolution.

The institutional historians, on the other hand, have tended to passover too lightly the passionately held beliefs, the convictions, thatanimated the men and women who created the political and legal institu-tions that emerged out of the American Revolution. In the past, thistendency was especially pronounced among legal historians, includingmany constitutional historians. Even today, the debate raging over theoriginal intent of the Framers of the Federal Constitution in drafting itsvarious provisions often neglects the background of beliefs that moti-vated the draftsmen, and, perhaps above all, the conflicting character of

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some of those beliefs and the need to accommodate-the need to livewith-those conflicts.

The approach that I have taken in this essay will, I hope, illuminatethe new system of constitutional law established in America in the periodfrom 1776 to 1791 by juxtaposing those constitutional principles thatreflect what I have called the English and the French belief-systems: thatis, the aristocratic, traditionalist, and communitarian convictions thatwere derived from the colonists' English heritage and the democratic,rationalist, and individualist convictions that were associated with theopposition thinkers of the later eighteenth century, especially in Francebut also in England itself, as well as in Italy, the Netherlands, Prussia,Austria, Russia, and other countries of Europe. The tension betweenthese two sets of "ideas"-they were not just ideas, they were revolution-ary movements-has persisted throughout our history; the balancebetween them has had to be struck over and over again until the mostrecent months, weeks, and even days. 2

52. A longer study would have to go back to earlier-pre-seventeenth century--elements of theWestern legal tradition. All modern Western conceptions of the rule of law are rooted in the PapalRevolution of the eleventh and twelfth centuries which drew on but also combined and transformedancient Roman, Greek, and Hebrew sources. See BERMAN, LAW AND REVOLUTION, supra note 11.

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The Impact of the Enlightenment on American Constitutional Law

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